Jersey Unreported Judgments

[2010]JRC070A

royal court

(Samedi Division)

1^st April 2010

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats de Veulle and Nicolle.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF K

Advocate C. R. Dutôt for the Minister of Health and Social Services.

Advocate M. J. Haines for the Guardian Ad Litem.

judgment

the deputy bailiff:

1.        This is an application by the Minister for Health and Social Services ("the Minister") in relation to K, a child now aged 11 years for a full care order under Article 24 (2) of the Children (Jersey) Law 2002 ("the 2002 Law").

2.        Neither K's mother nor father have appeared before us today although we are advised by Advocate Dutôt that both have been given formal notice of the hearing which is to take place.  We are aware from a directions hearing on 25th March, 2010, that the mother, who was then represented by Advocate Tremoceiro, did not intend to participate in the hearing today, and indeed accepted that the threshold criteria were met and consented to a full care order being made, if the Court thought fit.  Furthermore the mother did not challenge the care plan.  The father has not attended any of the hearings or directions hearings in this case since July 2009.  In accordance with Rule 17 (3) of the Children Rules 2005, the Court determined that it would proceed with hearing the Minister's application. 

3.        In the matter of T Children [2009] JRC 231, this Court considered the extent to which it should proceed to hear oral evidence in circumstances where the Minister and guardian considered the threshold test in Article 24 of the 2002 law was met and the mother rested on the wisdom of the Court, there being no other respondents.  Notwithstanding the comments of Thorpe J (as he then was) in Devon CC-v-S [1992] 2 FLR 244, cited at paragraph 8 of the Court's judgement in Re T, the Court took the view that it was necessary that oral evidence in that case should be adduced.  While it is likely that the Court will consider this issue on a case by case basis, a material difference from Re T is that in this case, the mother goes further than simply leaving it to the wisdom of the Court, because she has consented to an order being made. 

4.        In those circumstances the Court is prepared to receive the experts' reports which in most cases have been confirmed on affidavit to be true to the best of knowledge, information and belief of the relevant expert.  We accordingly feel able to carry out adequately an investigation of the proposals which have been advanced by the parties in connection with the application for the care order, and the profundity of the Court's investigation reflects the reality that there is consensus among the Minister, the guardian ad litem on behalf of the child, and the mother who has sole parental responsibility. 

5.        The Court's jurisdiction, relevant to this case, to make a care order under Article 24 of the 2002 law arises if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to, inter alia, the care given to the child or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give that child. 

6.        The Minister's case is that the evidence justifies the Court making a number of findings of fact as listed below:-

(i)        that K has been sexually abused by her father, that abuse having taken differing forms;

(ii)       that the father has shown K pornography;

(iii)      that the father has sexually assaulted K - this includes allegations by K against her father of rape, a requirement to perform oral sex upon her father and indecent assault;

(iv)      that the father has excessively chastised K and used force to pressurise K to engage in sexual activities;

(v)       that K is at serious risk of suffering further sexual and physical harm if returned to the care of her parents;

(vi)      that the father presents a considerable risk to K in terms of physical and sexual abuse;

(vii)     that the mother is unable to protect K from the risk of further sexual and physical abuse posed by her father or other adults intent on causing K harm. 

7.        The Court has reviewed transcripts of ABE recorded interviews with K held on 5^th November, 2008, 7^th November, 2008, 9^th December, 2008, and 24^th March, 2009.  The Court has also had the advantage of a psychological report by Dr Brian Tully dated 24th February, 2010 where he says:-

"My overall conclusion is that the evidence provided to me is consistent with K being flooded with memories of sexual abuse, for all the reasons given above.  The analysis, whilst not infallible, tends to support confidence in the credibility of her utterances arising from authentic memory."

8.        It is unnecessary to review in detail the evidence which has been presented in written form to the Court, and the Court has no hesitation at all in reaching the conclusion that the findings of fact which are described in paragraph 6 above are justified on that evidence.  In the circumstances, the Court is satisfied that the threshold criteria set out in Article 24 (2) of the 2002 law are met and that K has suffered significant harm.  Furthermore, the Court has no doubt that if a full care order were not made, with the result that K might be returned to her parents, there is a probability of K suffering further significant harm in the future. 

9.        The Court has had regard to the welfare test required under Article 2 of the 2002 law, and it has been clearly demonstrated that the ascertainable wishes and feelings of K support the view that a full care order ought to be made.  We do not think that the mother is able to provide the necessary protection against K being subject to further sexual abuse in the future, if a full care order is not made. 

10.      In the circumstances, the Court grants the application of the Minister for a full care order in respect of K. 

11.      We note that the Guardian suggested there was evidence of other grounds upon which reliance could be placed for the purposes of making the full care order.  These grounds are less serious than those which we have found to be established.  In the circumstances, we do not think it necessary to deal with these matters in this judgment. 

12.      We have gone on to consider the care plan which has been prepared by Mrs Irene Hansford, a senior Social Worker, on behalf of the Minister.  It is clear that as a result of the abuse which has been experienced, K will require support from Dr Laura Posner, the clinical psychologist for looked after children, to assist in addressing her emotional needs and the Court has noted that this will be reviewed three monthly as to how long K will require this support. 

13.      No contact with the extended paternal family is currently recommended, and in oral evidence before us, Mrs Hansford indicated that if any request was received by the Children's Service for such contact, it would be examined very carefully, particularly in the light of the need to be satisfied that the paternal family believed K's complaints against her father.  As the Court understands it, this would be a prerequisite to any contact taking place.  It is said on behalf of the guardian that if such contact were ever to take place, it would be desirable, in accordance with practice customarily followed in the United Kingdom, for a contact agreement to be drawn up with those members of the extended family who would have such contact.  We endorse that recommendation in respect of any potential contact with the extended paternal family.  The requirement for a contact agreement unsurprisingly does not appear in the care plan as currently proposed, because no contact with the extended paternal family is contemplated. 

14.      The guardian also suggests that contact with the mother and with the mother's extended family ought to be the subject of a contact agreement.  Contact with the mother is currently taking place approximately monthly, although K is ambivalent as to whether that frequency might be increased.  K's feelings appear to be influenced, unsurprisingly, by the success or otherwise of particular contact sessions, but there is clearly a difficulty in the sense that K's mother has found it difficult to accept that sexual abuse of K by her father has taken place. 

15.      The long term plan for K is that although she is currently remaining with her present foster carer as a short term carer, work will be done by the Fostering and Adoption Team in the Children's Service to obtain a long term fostering placement.  It is possible that such a placement might end up with an application for freeing for adoption but this would likely take place only with K's approval.  K has stated that she currently does not wish to be adopted, but given her age her position in that respect might change. 

16.      The Court considers that it is understandable at present that there should be no contact agreement in respect of the supervised contact which K is currently having with her mother, or in respect of the unsupervised contact which she currently enjoys with her maternal aunt and uncle, and their son.  For as long as the long term arrangements for K remain unsettled, it may be difficult to fix on a firm contact agreement.  In those circumstances while entirely sympathetic with the guardian's contention that there ought to be a contact agreement in place the Court is not minded to reject the care plan at this stage on the basis that no such contact agreement exists for contact with the mother and the extended maternal family.  However the Court recommends to the Minister that discussions should take place in the Children's Service with a view to the underlying policy of making contact agreements where it is feasible to do so, and the Court is minded to the view in general terms that this would be a policy to be encouraged. 

17.      In the circumstances the Court grants the application of the Minister for a full care order in respect of K and approves the care plan. 

18.      There are two other matters on which we make brief comment.  First of all, the evidence before us suggests that Dr Posner was unable to commence therapeutic work with K while a criminal investigation of the above allegations continued and consideration was being given to prosecution.  The guardian reminded us that this delay was not in K's best interests.  We make no findings on this because not all the relevant facts are before us, but it is clear that the general statement can be made that investigative and prosecution decisions in child abuse cases where the victim is a minor should if possible receive priority attention by the relevant agencies. 

19.      Secondly, the guardian has a number of criticisms of the procedures adopted by the Minister in relation to K's case.  It is clear that there has not been any discussion with representatives of the Children's Service on these matters and in those circumstances, any comments from this Court would be inappropriate.  We are confident that discussion will resolve what if any further changes to procedures are necessary; but to the extent that it does not do so, we give leave to the guardian to refer to the material at paragraphs 2 and 3 of her report, redacted so as to preserve anonymity, in formal correspondence with the Minister, or, if thought appropriate, the Chairman of the Jersey Child Protection Committee. 

Authorities

Children (Jersey) Law 2002.

Children Rules 2005.

In the matter of T Children [2009] JRC 231.

Devon CC-v-S [1992] 2 FLR 244.